Citation Nr: 0425292
Decision Date: 09/14/04 Archive Date: 09/16/04
DOCKET NO. 02-14 921A ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Winston-
Salem, North Carolina
THE ISSUE
Eligibility for nonservice-connected disability pension
benefits based on income.
ATTORNEY FOR THE BOARD
W.T. Snyder, Associate Counsel
INTRODUCTION
The veteran had active service from April 1944 to May 1946.
This matter initially came before the Board of Veterans'
Appeals (Board) on appeal from a rating decision of the
Winston-Salem, North Carolina, Regional Office (RO) of the
Department of Veterans Affairs (VA).
In December 2003, the Board remanded the case to the RO for
additional development. The RO completed the additional
development to the extent possible and returned the case to
the Board for further appellate review.
FINDING OF FACT
Despite adequate notice, the veteran has not fully complied
with income and net worth reporting requirements that would
allow for a determination that he is entitled to non-service
connected pension benefits.
CONCLUSION OF LAW
Based on the evidence of record, the legal requirements for
entitlement to payment of improved disability pension
benefits have not been met. 38 U.S.C.A. §§ 1503, 1506, 1521,
1522, 5107(b) (West 2002); 38 C.F.R. §§ 3.4, 3.23, 3.252,
3.271, 3.272, 3.274, 3.277, 3.342 (2003).
REASONS AND BASES FOR FINDING AND CONCLUSION
The Veterans Claims Assistance Act of 2000 (VCAA), 38
U.S.C.A. § 5100 et seq. (West 2002), imposes an enhanced duty
to notify a claimant as to the information and evidence
necessary to substantiate a claim for VA benefits, as well as
a duty to notify the claimant what information and evidence,
if any, the claimant is to provide, what evidence VA will
attempt to obtain, and for the claimant to submit any
information or evidence in his or her possession. 38 C.F.R.
§ 3.159(b)(1) (2003); Quartuccio v. Principi, 16 Vet. App.
183 (2002). The VCAA also requires VA to assist the claimant
with obtaining the evidence necessary to substantiate the
claim. 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326
(2003).
The United States Court of Appeals for Veteran Claims'
(Court's) decision in Pelegrini v. Principi, 18 Vet. App. 112
(2004), held, in part, that a VCAA notice, as required by
38 U.S.C. § 5103(a), must be provided to a claimant before
the initial unfavorable agency of original jurisdiction (AOJ)
decision on a claim for VA benefits.
In the present case, regarding the issue of entitlement to
improved pension benefits, a substantially complete
application (except as noted below) was received in January
2002. Thereafter, in a decision dated in January 2002, the
application was denied. Only after that decision was
promulgated did the AOJ, in January 2004, provide notice to
the claimant regarding what information and evidence is
needed to substantiate the claim, as well as what information
and evidence must be submitted by the claimant, what
information and evidence will be obtained by VA, and the need
for the claimant to submit any evidence in his possession
that pertains to the claim.
Because the VCAA notice in this case was not provided to the
appellant prior to the initial AOJ adjudication denying the
claim, the timing of the notice does not comply with the
express requirements of the law as found by the Court in
Pelegrini. Id. at 119. While the Court did not address
whether, and, if so, how, the Secretary can properly cure a
defect in the timing of the notice, it did leave open the
possibility that a notice error of this kind may be non-
prejudicial to a claimant. The Board specifically notes
that, in Pelegrini, the Court specifically spoke to the
situation of a claim which was filed prior to the enactment
of the VCAA, and that the Court has yet to speak to the
situation of a failure to provide timely notice in a post-
VCAA claim. Nonetheless, as noted, the Board does not deem
the Court to have foreclosed a finding of non-prejudice to an
applicant. Instead, the Board deems the salient
consideration to be one of whether the record before the
Board supports such a finding, and that the Board makes the
requisite finding so as to enable a proper review on further
appeal if pursued by the claimant. Pelegrini, 118 Vet. App.
at 120-21.
To find otherwise would require the Board to remand every
case for the purpose of having the AOJ provide a pre-initial
adjudication notice, a remedy which the Court specifically
rejected, at least as concerns pre-VCAA cases. Pelegrini, 18
Vet. App. at 120. The Board discerns no reason to conclude
the Court would deem such an approach necessary in post-VCAA
cases, as there is no basis for concluding that harmful error
occurs simply because a claimant receives VCAA notice after
an initial adverse adjudication.
In reviewing AOJ determinations on appeal, the Board is
required to review the evidence of record on a de novo basis
and without providing any deference to the AOJ's decision.
As provided by 38 U.S.C.A. § 7104(a), all questions in a
matter which under 38 U.S.C.A. § 511(a) are subject to
decision by the Secretary shall be subject to one review on
appeal to the Secretary, and such final decisions are made by
the Board. Because the Board makes the final decision on
behalf of the Secretary with respect to claims for veterans
benefits, it is entirely appropriate for the Board to
consider whether the failure to provide a pre-AOJ initial
adjudication constitutes harmless error, especially since an
AOJ determination that is "affirmed" by the Board is
subsumed by the appellate decision and becomes the single and
sole decision of the Secretary in the matter under
consideration. See 38 C.F.R. § 20.1104 (2003).
All the VCAA requires is that the duty to notify is
satisfied, and that claimants be given the opportunity to
submit information and evidence in support of their claims.
Once this has been accomplished, all due process concerns
have been satisfied. See Bernard v. Brown, 4 Vet. App. 384
(1993); Sutton v. Brown, 9 Vet. App. 553 (1996); see also
38 C.F.R. § 20.1102 (harmless error).
Here, the Board finds that any defect with respect to the
timing of the VCAA notice requirement was harmless error for
the following reasons. First, the RO had contacted the
veteran's pharmacist, who informed the RO that a record of
the veteran's and his wife's medical expenses would be
provided to the veteran with instructions to mail them to the
RO. The RO informed the veteran of that fact and instructed
him to mail the information as soon as he received it. No
such information was received from the veteran. Second, the
VCAA notice and duty to assist provisions were set forth in
the statement of the case (SOC), and there is no record of
the SOC having been returned as undelivered. Third, pursuant
to the December 2003 Board Remand, the RO issued a January
2004 VCAA notice letter (letter) to the veteran which
contained all of the statutory elements of notice, to include
what evidence is necessary to support a claim for nonservice-
connected pension benefits. As to who would obtain what part
of the evidence needed, the letter specifically informed the
veteran to send any evidence of recent medical expenses
incurred within the prior 12 months so that the RO could
determine his eligibility for the benefits. The RO enclosed
VA Form 21-8416, Medical Expense Report, to assist the
veteran with providing the information. Fourth, the RO
developed the information from the pharmacist directly.
Fifth, in response to the information provided by the veteran
and his pharmacist, the RO, in March 2004, provided the
veteran a duty to assist letter, wherein the RO informed the
veteran that he had not submitted complete information as to
his assets, and that the information was needed to render a
decision. The veteran did not respond to the letter.
The Board finds that the letter and the March 2004 letter
meet the notice requirements of the VCAA, as concerns the
statutory content. 38 U.S.C.A. § 5103(a) (West 2002);
Veterans Benefits Act of 2003, Pub. L. No. 108-183, § 701,
117 Stat. 2651, ___ (Dec. 16, 2003) (to be codified at 38
U.S.C. § 5103(c)); 38 C.F.R. § 3.159(b)(1) (2003); Opinion Of
The General Counsel 1-2004 (February 24, 2004); Pelegrini v.
Principi, 18 Vet. App. at 120-21; Quartuccio v. Principi, 16
Vet. App. 183 (2002).
While the notice provided to the veteran in the letter and
the March 2004 letter were not given prior to the first AOJ
adjudication of the claim, the veteran has been provided with
every opportunity to submit evidence and argument in support
of his claim, and to respond to VA notices. Further, the RO
continued to develop the veteran's claim, including pursuant
to a Board remand, after the initial adjudication. The
initial decision was rendered after a RO request for specific
information was not responded to.
In light of the evidence of record, as set forth above, the
Board finds that the veteran has not been prejudiced in the
pursuit of his claim. He had received RO assistance in
identifying and obtaining evidence on the issues of this
appeal, he responded to the letter only in part, and he did
not respond at all to the March 2004 letter. Thus, the
Board's finding is not based on mere speculation on how he
would have responded to a notice, timely or otherwise. See
Huston v. Principi, 17 Vet. App. 195, 203 (2003) ("it is not
for the Secretary or this Court to predict what evidentiary
development may or may not result from such notice").
Further, as noted, the file demonstrates that the veteran has
not responded to clear and specific requests for the evidence
needed to support his claim. Thus, the evidence shows the
file to be fully developed. See De La Cruz v. Principi, 15
Vet. App. 143, 149 (2001).
The Board finds that the timing of the January 2004 VCAA
notice clearly had no adverse bearing on the development of
the veteran's claim or other assistance he received or the
substantive decision to deny his claim. See Pelegrini, 18
Vet. App. at 121. Thus, to decide his appeal will not
prejudice his pursuit of his claim. See also Conway v.
Principi, 353 F.3d 1369, 1373-74 (Fed. Cir. 2004).
As concerns the duty to assist, as noted above, the RO
contacted the veteran's pharmacist and developed evidence of
the veteran's medical expenses and otherwise informed the
veteran of all he needed to submit to support his claim. All
records obtained or generated have been associated with the
claim file. The Board finds that the RO has complied with
the duty to assist. 38 C.F.R. § 3.159(c) (2003).
Factual background.
In his January 2002 application for pension benefits, the
veteran reflected his annual family income as $19,392.00,
which consisted of monthly income for himself of $1116.00 and
his wife's of $500.00, both from Social Security benefits.
The only asset reflected on the application was a checking
account of an undisclosed balance. The veteran did not
report any medical expenses on his application.
The RO, in the January 2002 letter which informed the veteran
that his application was denied, informed the veteran that
his family income exceeded the maximum allowable annual
income of $12,516.00. The veteran also was informed that
medical expenses paid by him during the prior 12 months could
reduce his countable income and allow him to qualify.
Subsequently, the veteran reported that he paid a $525.00
monthly health insurance premium, and $58.00 per month for
medical supplies. The RO determined that, as of the date of
the SOC, the veteran's and his wife's SMI premium was $54.00
per month, for total allowable expenses of $8,853.00. Their
Social Security benefits had increased to $1,197.00 per month
for the veteran, and $565.00 per month for his wife, for a
total annual family income of $21,144.00.
The veteran's balance sheet at this point, per the SOC,
reflected $12,916.00 annual income and $8,853.00 in allowable
medial expenses. This was said to exceed the pertinent
annual payment of $12,916.00.
In his October 2002 substantive appeal, the veteran provided
the cost of his utilities, telephone, and gas for his
automobile.
The case then came to the Board. Review of the record
revealed a suggestion that there were some unreimbursed
medical expenses that might be pertinent, and could be
documented. The case was remanded at that point.
Additional development confirmed that there were additional
medical expenses that would lower the countable income
further. Specifically, the veteran's actual out-of-pocket
expenses for medicines, etc., were obtained from his
pharmacist. The computerized printout reflects that the
veteran actually paid $1,646.00 for himself, and $1,623 for
his wife in medical expenses for 2002. Further, he reported
that his monthly health insurance premium had increased to
$567.00, and the SMI premium for he and his wife had
increased to $59.00 per month. Thus, his total deductible
medical expenses for 2002 were $11,479.00 His Social
Security benefits had increased to $1,213.70 per month,
$14,564.00 annually, and his wife's to $573.70 per month,
$6,884.00 annually, for a total family income of $21,448.00.
When allowable medical expenses are deducted, the veteran's
annual family income was $9,969.00.
Based on the determination that he might now be eligible for
pension benefits, the RO sent a March 2004 letter informing
the veteran that, based on the information submitted, he
appeared to qualify for pension benefits, but his application
still was incomplete. The March 2004 letter informed the
veteran that he needed to submit medical expenses for 2001,
January 1, 2002, through January 31, 2002, and for January 1,
2002, through December 31, 2002, as well as for 2003 and
2004. Further, the letter informed him that he needed to
provide the information on dependency and net worth.
Specifically, whether either he or his wife had a prior
marriage and the balance in his checking account. The
veteran did not respond or otherwise provide the requested
information.
Analysis.
A pension is available to a veteran who served for 90 days or
more during a period of war and who is permanently and
totally disabled due to non-service connected disabilities
which are not the result of his own willful misconduct. 38
U.S.C.A. § 1521(a); 38 C.F.R. § 3.342(a). A permanent and
total disability rating for pension purposes has been
assigned appellant since February 1993. However, pension is
not payable to a veteran whose combined annual income exceeds
statutory and regulatory limitations. 38 U.S.C.A. § 1522(a);
38 C.F.R. § 3.274(a).
In determining annual income for purposes of establishing
eligibility for non-service connected pension, all payments
of any kind or form or from any source shall be included as
countable income during the 12-month annualization period in
which received unless specifically excluded. 38 U.S.C.A. §
1503(a); 38 C.F.R. §§ 3.252(c), 3.271(a).
Exclusions from countable income include unreimbursed medical
expenses paid within the 12-month annualization period. 38
U.S.C.A. § 1503(a)(8); 38 C.F.R. § 3.272(g). Unreimbursed
medical expenses will be excluded from the veteran's
countable income when (1) they were or will be paid by a
veteran or spouse for medical expenses of the veteran,
spouse, children, parents and other relatives for whom there
is a moral or legal obligation of support; (2) they were or
will be incurred on behalf of a person who is a member or a
constructive member of the veteran's or spouse's household;
and (3) they were or will be in excess of 5 percent of the
applicable maximum annual pension rate or rates for the
veteran (including increased pension for family members but
excluding increased pension because of need for aid and
attendance or being housebound) as in effect during the 12-
month annualization period in which the medical expenses were
paid. Id.
Under 38 U.S.C.A. § 1506 and 38 C.F.R. § 3.277(a), as a
condition of granting or continuing pension, the VA may
require from any person who is an applicant for or a
recipient of pension such information, proofs, and evidence
as is necessary to determine the annual income and the value
of the corpus of the estate of such person, and of any spouse
or child for whom the person is receiving or is to receive
increased pension (such child is hereinafter in this section
referred to as a dependent child), and, in the case of a
child applying for or in receipt of pension in his or her own
behalf (hereinafter in this section referred to as a
surviving child), of any person with whom such child is
residing who is legally responsible for such child's support.
Under 38 C.F.R. § 3.277(b), any individual who has applied
for or receives pension must promptly notify the Secretary of
any change affecting entitlement in any of the following: (1)
Income; (2) Net worth or corpus of estate; (3) Marital
status; (4) Nursing home patient status; (5) School
enrollment status of a child 18 years of age or older; or (6)
Any other factor that affects entitlement to benefits under
the provisions of this Part. Under 38 C.F.R. § 3.277(c)(3),
an individual who applies for or receives pension as defined
in § 3.3 of this part shall, as a condition of receipt or
continued receipt of benefits, furnish the Department of
Veterans Affairs an eligibility verification report upon
request.
The maximum improved pension rate for a veteran with a spouse
in 2002 was $12,516.00. M21-1, Part I, Appendix B, Change
41. The Board notes that, although the SOC informed the
veteran that his family income was above that amount, it
appears that his income, after deducting medical expenses, he
may have qualified for payment of some benefit during that
time if all conditions were met. Nonetheless, as currently
is the case, the Board is constrained to find that the
veteran has not fully complied with the reporting
requirements. In order to enter an informed decision under
the law, at least the checkbook and dependency information
should be submitted. If he chooses to submit that
information, he may apply to reopen the claim as to this
issue. Otherwise, the grant herein is precluded by law,
without complete information.
As set forth above, the veteran was fully informed of the
information needed for his application. The SSOC reflects
that he did not submit the balance of his checking account or
provide the dependency information requested. Thus, the
veteran has not complied with the regulatory requirements for
a pension, 38 C.F.R. § 3.277(a), or complete reasonable
actions necessary to adjudicating his claim. Olson v.
Principi, 3 Vet. App. 480, 483 (1992); Wood v. Derwinski, 1
Vet. App. 190, 193 (1991).
The veteran is entitled to the benefit of the doubt where the
evidence in favor of granting the benefit sought and against
granting it is roughly in balance. 38 U.S.C.A. § 5107(b)
(West 2002); 38 C.F.R. § 3.102 (2003). Gilbert v. Derwinski,
1 Vet. App. 49, 54 (1990); see also Almany v. Brown, 9 Vet.
App. 518, 519 (1996). However, where the evidence
preponderates against the allowance of the benefit, the
benefit of the doubt rule is not applicable. Gilbert v.
Derwinski, 1 Vet. App. at 56. The Board finds that the
evidence preponderates against an allowance of nonservice-
connected pension benefits. 38 C.F.R. § 3.274(a).
ORDER
Entitlement to payment of improved disability pension
benefits is denied based on incomplete submission of
information.
____________________________________________
MICHAEL D. LYON
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs
YOUR RIGHTS TO APPEAL OUR DECISION
The attached decision by the Board of Veterans' Appeals (BVA or Board) is
the final decision for all issues addressed in the "Order" section of the
decision. The Board may also choose to remand an issue or issues to the
local VA office for additional development. If the Board did this in your
case, then a "Remand" section follows the "Order." However, you cannot
appeal an issue remanded to the local VA office because a remand is not a
final decision. The advice below on how to appeal a claim applies only to
issues that were allowed, denied, or dismissed in the "Order."
If you are satisfied with the outcome of your appeal, you do not need to do
anything. We will return your file to your local VA office to implement
the BVA's decision. However, if you are not satisfied with the Board's
decision on any or all of the issues allowed, denied, or dismissed, you
have the following options, which are listed in no particular order of
importance:
? Appeal to the United States Court of Appeals for Veterans Claims
(Court)
? File with the Board a motion for reconsideration of this decision
? File with the Board a motion to vacate this decision
? File with the Board a motion for revision of this decision based on
clear and unmistakable error.
Although it would not affect this BVA decision, you may choose to also:
? Reopen your claim at the local VA office by submitting new and
material evidence.
There is no time limit for filing a motion for reconsideration, a motion to
vacate, or a motion for revision based on clear and unmistakable error with
the Board, or a claim to reopen at the local VA office. None of these
things is mutually exclusive - you can do all five things at the same time
if you wish. However, if you file a Notice of Appeal with the Court and a
motion with the Board at the same time, this may delay your case because of
jurisdictional conflicts. If you file a Notice of Appeal with the Court
before you file a motion with the BVA, the BVA will not be able to consider
your motion without the Court's permission.
How long do I have to start my appeal to the Court? You have 120 days from
the date this decision was mailed to you (as shown on the first page of
this decision) to file a Notice of Appeal with the United States Court of
Appeals for Veterans Claims. If you also want to file a motion for
reconsideration or a motion to vacate, you will still have time to appeal
to the Court. As long as you file your motion(s) with the Board within 120
days of the date this decision was mailed to you, you will then have
another 120 days from the date the BVA decides the motion for
reconsideration or the motion to vacate to appeal to the Court. You should
know that even if you have a representative, as discussed below, it is your
responsibility to make sure that your appeal to Court is filed on time.
How do I appeal to the United States Court of Appeals for Veterans Claims?
Send your Notice of Appeal to the Court at:
Clerk, U.S. Court of Appeals for Veterans Claims
625 Indiana Avenue, NW, Suite 900
Washington, DC 20004-2950
You can get information about the Notice of Appeal, the procedure for
filing a Notice of Appeal, the filing fee (or a motion to waive the filing
fee if payment would cause financial hardship), and other matters covered
by the Court's rules directly from the Court. You can also get this
information from the Court's web site on the Internet at
www.vetapp.uscourts.gov, and you can download forms directly from that
website. The Court's facsimile number is (202) 501-5848.
To ensure full protection of your right of appeal to the Court, you must
file your Notice of Appeal with the Court, not with the Board, or any other
VA office.
How do I file a motion for reconsideration? You can file a motion asking
the BVA to reconsider any part of this decision by writing a letter to the
BVA stating why you believe that the BVA committed an obvious error of fact
or law in this decision, or stating that new and material military service
records have been discovered that apply to your appeal. If the BVA has
decided more than one issue, be sure to tell us which issue(s) you want
reconsidered. Send your letter to:
Director, Management and Administration (014)
Board of Veterans' Appeals
810 Vermont Avenue, NW
Washington, DC 20420
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CONTINUED
Remember, the Board places no time limit on filing a motion for
reconsideration, and you can do this at any time. However, if you also plan
to appeal this decision to the Court, you must file your motion within 120
days from the date of this decision.
How do I file a motion to vacate? You can file a motion asking the BVA to
vacate any part of this decision by writing a letter to the BVA stating why
you believe you were denied due process of law during your appeal. For
example, you were denied your right to representation through action or
inaction by VA personnel, you were not provided a Statement of the Case or
Supplemental Statement of the Case, or you did not get a personal hearing
that you requested. You can also file a motion to vacate any part of this
decision on the basis that the Board allowed benefits based on false or
fraudulent evidence. Send this motion to the address above for the
Director, Management and Administration, at the Board. Remember, the Board
places no time limit on filing a motion to vacate, and you can do this at
any time. However, if you also plan to appeal this decision to the Court,
you must file your motion within 120 days from the date of this decision.
How do I file a motion to revise the Board's decision on the basis of clear
and unmistakable error? You can file a motion asking that the Board revise
this decision if you believe that the decision is based on "clear and
unmistakable error" (CUE). Send this motion to the address above for the
Director, Management and Administration, at the Board. You should be
careful when preparing such a motion because it must meet specific
requirements, and the Board will not review a final decision on this basis
more than once. You should carefully review the Board's Rules of Practice
on CUE, 38 C.F.R. 20.1400 -- 20.1411, and seek help from a qualified
representative before filing such a motion. See discussion on
representation below. Remember, the Board places no time limit on filing a
CUE review motion, and you can do this at any time.
How do I reopen my claim? You can ask your local VA office to reopen your
claim by simply sending them a statement indicating that you want to reopen
your claim. However, to be successful in reopening your claim, you must
submit new and material evidence to that office. See 38 C.F.R. 3.156(a).
Can someone represent me in my appeal? Yes. You can always represent
yourself in any claim before VA, including the BVA, but you can also
appoint someone to represent you. An accredited representative of a
recognized service organization may represent you free of charge. VA
approves these organizations to help veterans, service members, and
dependents prepare their claims and present them to VA. An accredited
representative works for the service organization and knows how to prepare
and present claims. You can find a listing of these organizations on the
Internet at: www.va.gov/vso. You can also choose to be represented by a
private attorney or by an "agent." (An agent is a person who is not a
lawyer, but is specially accredited by VA.)
If you want someone to represent you before the Court, rather than before
VA, then you can get information on how to do so by writing directly to the
Court. Upon request, the Court will provide you with a state-by-state
listing of persons admitted to practice before the Court who have indicated
their availability to represent appellants. This information is also
provided on the Court's website at www.vetapp.uscourts.gov.
Do I have to pay an attorney or agent to represent me? Except for a claim
involving a home or small business VA loan under Chapter 37 of title 38,
United States Code, attorneys or agents cannot charge you a fee or accept
payment for services they provide before the date BVA makes a final
decision on your appeal. If you hire an attorney or accredited agent within
1 year of a final BVA decision, then the attorney or agent is allowed to
charge you a fee for representing you before VA in most situations. An
attorney can also charge you for representing you before the Court. VA
cannot pay fees of attorneys or agents.
Fee for VA home and small business loan cases: An attorney or agent may
charge you a reasonable fee for services involving a VA home loan or small
business loan. For more information, read section 5904, title 38, United
States Code.
In all cases, a copy of any fee agreement between you and an attorney or
accredited agent must be sent to:
Office of the Senior Deputy Vice Chairman (012)
Board of Veterans' Appeals
810 Vermont Avenue, NW
Washington, DC 20420
The Board may decide, on its own, to review a fee agreement for
reasonableness, or you or your attorney or agent can file a motion asking
the Board to do so. Send such a motion to the address above for the Office
of the Senior Deputy Vice Chairman at the Board.
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